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The difference between a Lasting Power of Attorney and Court of Protection Deputyship

View profile for Rachel Haywood
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Is it possible to apply for a Lasting Power of Attorney during COVID-19?

Lasting Powers of Attorney and a Court of Protection Deputyship Order are both documents which can be put in place in order to allow attorneys or deputies to manage the affairs of someone else, but do you know the difference?

Anyone over the age of 18 with the ability to make their own decisions can make a Lasting Power of Attorney which is a document appointing attorneys to manage their affairs on their behalf should they be unable to do so themselves. A Lasting Power of Attorney is created by the person giving the power (the donor) which then needs to be registered with the Office of The Public Guardian.

The donor has the choice when making the document whether they would like the document to be used straight away, or can stipulate that the document can be used only when they have lost the capacity to make their own decisions. Donors also have the ability to include preferences and instructions for their attorneys, for example consulting their financial advisor before making an investment on their behalf.

A Lasting Power of Attorney cannot be put in place for a person if they lack the capacity to make their own decisions. If a person has lost capacity, an application must be made to the Court of Protection for deputyship and a Lasting Power of Attorney cannot be put in place.

In order for a successful deputyship application to be made a capacity assessment confirming that the person does in fact lack capacity must be provided. Once an application including this has been made this will be processed by the court who create and order appointing a deputy or deputies for the person lacking capacity.

A family member or friend (lay deputy) or a solicitor’s firm, or other organisation (professional deputy) can make an application for deputyship. Once appointed, deputies must comply strictly with the terms of the order and any directions provided by the court. Deputies must also file yearly accounts with the Office of The Public Guardian so must keep all records of spending up to date.

In summary a Lasting Power of Attorney offers a donor control over who would manage their finances should they become incapable and how attorneys would act should the need arise. If you lose capacity then you can no longer make a Lasting Power of Attorney a successful Court of Protection application for deputyship must be made.

If you would like to discuss appointing an attorney to manage your affairs should you ever become incapable, or if you would like advice on how you can be appointed to manage the affairs of someone who you think may lack the capacity please contact our team on 0161 696 6238 and our new business advisers will be more than happy to offer advice on the options available to you and how we can help.

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